False Arrest & Imprisonment

( November 22, Montreal,Sri Lanka Guardian) False arrest is unlawful or unjustifiable arrest and is committed where a person unlawfully, intentionally or recklessly restrains another’s freedom of movement from a particular place. Physical detention is an essential ingredient for grounding an action in false imprisonment. Thus if a person agrees to go to a police station voluntarily, he has not been arrested even though the person taking him would have arrested him on refusal to go.

The Fourth Amendment to the U.S. Constitution stipulates that unless there is probable cause, a person could not be subject to a search warrant or arrest. A good example of probable cause is the 1967 case of Terry v. Ohio, which arose from an arrest stemming from a policeman becoming suspicious of two men when one of them walked up the street, peered into a store, walked on, started back, looked into the same store, and then conferred with his companion. The other suspect repeated this ritual, and between them the two men went through this performance about a dozen times before following a third man up the street. The officer, thinking they were preparing to commit a misdemeanour and might therefore be armed, confronted the men, asked their names and patted them down, thereby discovering pistols the plaintiff and his companion. In affirming Terry’s conviction for carrying a concealed weapon, the Supreme Court concluded that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may ensue and that the person with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behaviour he identifies himself as a policeman and makes reasonable inquiries, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Physical detention is an essential ingredient for grounding an action in false imprisonment. Thus if a person agrees to go to a police station voluntarily, he has not been arrested even though the person taking him would have arrested him on refusal to go.

Common law provides that where an arresting officer has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of that offence. The offence of false imprisonment is one of “basic intent” and despite the paucity of authority as to whether the element of mens rea (mental element) is necessary to constitute the offence of false imprisonment, at least one decision [Re Hutchins (1988) Crim L R 379] has recognized the requirement. False imprisonment is generally considered under civil actions where the element of mens rea is not relevant.

In the early case of Christy v. Leachinsky, decided in 1947, Lord Simonds, while observing that it was the right of every citizen to be free from arrest and that he should be entitled to resist arrest unless that arrest is lawful, concluded that a person cannot be arrested unless he knows why he is being arrested. This principle has however, since been replaced by Section 28 of the Police and Criminal Evidence Act 1984 which provides that where a person is arrested, otherwise than being informed that he is under arrest, he must be so informed as soon as practicable afterwards. While this provision holds incontrovertible the fact that a person who is arrested has to be informed of the grounds for his arrest, it dispenses with the exclusive need to inform the person at the time of arrest.

In the more recent case of Murray v. Ministry of Defence decided in 1988, the plaintiff sued the Crown for false imprisonment on the ground that she had been detained and questioned by members of the armed forces for 30 minutes before they indicated to her that she was under arrest. She claimed that her arrest took place only when she was informed that she was under arrest and that the preceding detention was therefore unlawful. The House of Lords at appeal held that where a person was detained or restrained by a police officer and knew that he was being detained or restrained, such detention amounted to an arrest even though no formal words of arrest were spoken by the officer. Since the plaintiff had been under restraint from the moment she was identified, and must have realised that she was under restraint, she was deemed to have been under arrest from that moment, notwithstanding that the arrest took place formally, a half hour later.

Lord Griffiths, quoting an earlier decision, (Spicer v. Holt (1976) 3 All E. R. 71 at 79) endorsed the principle that arrest did not depend merely on the legality of the act but on the fact whether the person arrested had been deprived of his liberty. His Lordship went on address the decision in Christy v. Leachinsky and noted: “There can be no doubt that in ordinary circumstances, police should tell a person the reason for his arrest at the time they make the arrest. If a person’s liberty is being restrained he is entitled to know the reason. If the police fail to inform him, the arrest will be unlawful with the consequence that if police are assaulted as the suspect resists arrest, he commits no offence. Therefore, if he is taken to custody, he will have action for wrongful imprisonment”.

However, Christy v. Leachinsky made it clear that there are exceptions to this rule.

The exceptions that Lord Griffiths referred to were those expressed by Viscount Simon where, when circumstances were such, that the person detained knew the general nature of the alleged offence, the requirement for informing him of the fact and grounds for his arrest did not arise. Viscount Simon held that technical or precise language need not be used and since any person is entitled to his freedom, if restraint was used and he knew the reason for such restraint, that was enough.

There is however, no need any more to rely on this aspect of the Christy decision since, statute has now explicitly laid down the law, leaving no room for ambivalence on the subject.

In 1985, Kulanthivelu Veeradas was taken into custody in northern Sri Lanka on 22 December 1985 by the Sri Lanka Police, during a “cordon and search” operation. He was thereafter subjected to a detention order dated 30 December 1985 and detained at various detention camps. He was released from detention on 9 August 1987.

Two years later in November 1988, when Veeradas was about to board an Airlanka flight to London from the Colombo International Airport, he was questioned by two persons in the sterile lounge of the airport and taken to a security officer of Airlanka for further questioning. Upon questioning Veeradas as to why he was leaving Sri Lanka, and after examining his travel documents, the Airlanka official had requested immigration officials to cancel the endorsement on Veeradas’ passport that allowed him to leave the country, and handed him over to the police. Three weeks later, after having been in remand prison, produced before a magistrate and released, Veeradas left for London on an Airlanka flight, to complete his aborted mission to address the Islington and Hackney Group of Amnesty International which had been instrumental in securing Veeradas’ release from the detention camp in 1987.

Veeradas applied to the Supreme Court of Sri Lanka inter alia for a declaration that his fundamental rights guaranteed by the Constitution of Sri Lanka had been violated by the obstruction caused to his travel by Airlanka, its officials and Sri Lanka Government officials in the following manner: a) he suffered degrading treatment at the hands of officials of the government of Sri Lanka and Airlanka; b) he was deprived of the freedom of movement by the above officials in derogation of Article 14(1)(h) of the Constitution; c) he was precluded from travelling to London; and, c) he was subjected to arbitrary arrest, detention and deprivation of personal liberty in violation of Article 13 (1) and (2).

Airlanka claimed that the duty manager had noticed (on examining Veeradas’ passport) a discolouration in the space reserved for the signature of the passport-holder. There had also been documents relating to Veeradas’ detention in his baggage. Also, the name of the passenger, as appearing in his passport had differed from the name given in his identity card, giving rise to the suspicion that the passenger’s passport could have been a forgery.

The Petitioner’s application was heard in September 1989 by a bench of three judges of the Supreme Court. Judgment was delivered in November of the same year. The judges decided unanimously that the petitioner had not been deprived of any of his fundamental rights by the actions of the respondents. With regard to his arrest and detention, the Petitioner alleged that the respondents had acted in derogation of Article 13(1) of the Constitution which reads: “No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest”.

Fernando J. concluded that when the arrest of the Petitioner was considered objectively it was apparent that both the Police and Airlanka did have reasonable grounds for suspicion, particularly with regard to the erasure mark on the Petitioner’s passport and the inconsistencies of the Petitioner’s name on his passport and Identity Card. In reaching his conclusion Fernando J. also took into consideration the fact that there was unchallenged evidence that the incidence of passengers travelling on Airlanka flights with forged passports or visas, or being found upon disembarkation to be without any travel documents, had increased to alarming proportions. He felt that Airlanka was being put to considerable inconvenience and great expense at having to repatriate inadmissible passengers and that Airlanka had should not be expected to cope with the attendant inconvenience of paying fines on behalf of inadequately documented or inadmissible passengers and carrying them back to their point of origin. According to Fernando J. there was ample evidence that in the past, passengers had passed successfully through immigration control with forged travel documents and that Airlanka had to take the precaution of checking passengers even after they had been cleared by immigration control.

The Veeradas case reflected the basic principle that when a person is arrested without a warrant, courts would examine carefully the circumstances of such arrest so as not to under-estimate the peculiar situation that may prevail in the country, while at the same time not over-estimating the extended powers of arrest that such a situation may bestow on peace officers and members of the public.

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